We chat about the latest legal copyright related controversies with a seasoned legal professional

At DailyTech we are always
looking for diverse opinions from those with experience and knowledge
in fields relating to the tech industry. Thus DailyTech
was quite enthused when Jeffrey Johnson, a partner with Pryor Cashman
LLP agreed to do a piece with us discussing copyright and the tech
industry. Pryor Cashman is one of the nation's leading law
firms with 120 attorneys, with offices in New York and Los Angeles.
The firm has worked on numerous cases concerning the
software/hardware/internet industries and the entertainment industry.

The following is our unabridged
interview with Mr. Johnson.

UPDATE: Monday, Nov. 16, 2009, 1:00 p.m.:

Many readers asked for Mr. Johnson to reply to the question about the legality of backup copies of DVDs/CDs. Rather than let these requests fall on deaf ears, we recontacted Mr. Johnson, and his response is now included below.

DailyTech:
What do you
make of the current state of copyright law, and what parallels do you
see to the stir that happened when Xerox hit the scene, offering easy
copying of print media and potential infringement?

JCJ:
Generally
speaking, and for many understandable policy reasons, law can be slow
to change: usually, its a trailing indicator of changes in society at
large, and when it does change, those changes ordinarily come about
as new legislation or new ways of doing business, rather than judges
imposing social change through case law. By way of example, when
copyright law was first developed, there was no such thing as a
copier. Copying a book was a laborious process, and few people would
undertake that process for a non-commercial purpose like sharing the
contents with a friend; instead, they would actually share the book
itself. When Xerox and other manufacturers made it so easy to copy
books, it suddenly became very easy to copy a few pages from a book
(or the entire thing for that matter, so long as you had enough
nickels) and share them with a friend, or take them home from the
library to work on your paper. It took the law several years to
figure out how best to deal with the new technology, and even then
most of the issues were worked out privately between rights holders
(e.g., book publishers) and the owners of widely-accessible copy
machines, such as libraries.

While 21st century technology is
much different, the underlying process of grappling with
technological change, and deciding how the law will change to cope
with that new technology, is very similar. When judges try to apply
old case law, and old legislation, to new technology, they frequently
find that the law simply doesn't address the new circumstances in a
manner that allows for sensible results, so they look to the
legislators to make changes in the law that will allow for realistic
solutions. The legislators, however, are beholden to competing
interests that ensure that such change will be slow in
coming.

DailyTech:
Do you see the
music/movies/television industries' legal crusade against citizens
who pirate as productive? With rulings like the recent $1.92M
USD verdict against Jammie Thomas-Rassert drawing public ire, how
can the industry fight piracy, while not coming across as a bunch of
thugs?
JCJ:
It's not easy. Until the law catches up
with technological change, rights holders can, and I think should,
seek to protect and enforce their rights under the law. Those suits,
and the public response to those suits, may prove to be one of the
best ways to spur legislators to make the hard legislative choices
necessary to allow for more practical outcomes than forcing large
industries to sue their customers.

DailyTech:
Microsoft
recently kicked
1 million users off of Xbox Live for modifying their consoles.
Likewise, Apple tried to brick
iPhones that were unlocked or jailbroken, back in 2007. In your
opinion should the law allow users who legally purchased products to
modify them freely, or should the opposite -- a ban on modifications
-- be enforced?

JCJ:
As a practical matter, I can't
imagine a public consensus developing around a change in the law that
would allow end-users to freely modify products that are used to
access third party content. Vigorously enforcing a ban on
modifications, however, may prove to be impractical. I can imagine a
compromise where modifications are allowed subject to some process of
review and approval (similar to how Apple handles iPhone apps), or
perhaps where machines that can be modified are sold along-side
versions that can't, with the machines that can be modified having
reduced or altered functionality, or perhaps a much higher price. The
key complication is the fact that there are two parties to the
transaction -- the manufacturer of the machine and the end-user --
but hundreds of other affected parties (i.e., the owners of all the
content that is run on the machine). Getting a consensus from all
those parties won't be easy.

DailyTech:
One of the
key drivers for modification of Xbox consoles is to make backup
copies of discs. The RIAA/MPAA have long stated that backups
of legally-owned materials are illegal and that "making one
copy is another way of saying stole one copy". Should such
backups, in your view, be legal? Why or why not?

JCJ:

I think this is a good example of where the law and technology are no longer synchronized. It is generally correct that, as a legal matter, unless a written contract (e.g., license agreement) otherwise allows, it is a violation of copyright law to copy a copyrighted work for purposes of making a "back-up" copy. This is no different than making copies of a hard cover novel or a vinyl album just in case you lose or damage it. Nobody ever seriously grappled with the issue of whether you should have a right to make a copy of a book or an album and keep it on your shelf for that eventuality, arguably because the risk of loss/damage was relatively low, and the cost of copying was relatively high. It seems to me there is little difference with a machine-readable disc, except that the likelihood of damage or loss of the disc is probably higher, while the cost of making a copy is much lower. Accordingly, the real challenge is not construing existing law; rather, it is deciding how, if at all, to change the law in light of a new technological reality.

DailyTech:
A UK independent musician from the band Orange Juice says that a variety of major labels have infringed on his songs. He claims such examples of major labels claiming to own copyrights of small musicians (which they don't hold) to be common. What do you make of this, and how do your react to the light that this casts on the major labels campaign against civilian infringers?

JCJ:
These types of disputes are not
new, but the vast majority of newly composed music does not get held
hostage to a dispute over copyright ownership. When it does, it's a
pretty straight-forward legal question, and the courts, however
imperfect, are probably still the best place to resolve the issue.
While I'm sure there are some unscrupulous label execs. who try to
steal music their label's don't rightfully own, there are also
musicians who, in all sincerity, hear their own music in tunes
actually composed by others.

DailyTech:
What's your
view on the "three
strikes" laws proposed in France, UK, Australia, and
elsewhere, that propose cutting off internet filesharers after two
warnings, forcing ISPs to cut their service?
JCJ:
We
all have to start experimenting with new options to deal with new
technology. Whether this approach will work I can't say, but I'm
skeptical.

DailyTech thanks Jeffrey Johnson for his
time and for providing us with some insightful responses into how
some in the law community view various copyright-related issues.

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This article is over a month old, voting and posting comments is disabled

Not uncalled for in the slightest. The fact is that a LOT of people out there with modified consoles are playing LEGALLY BACKED UP GAMES, which makes Microsoft's 'bricking' their consoles legally 'iffy' to be blunt.

And the fact is that third party people ALREADY access XBox Live using.... computers, which are EASILY MODIFIABLE!

So, no, the consensus with the public is that modifying things that are used to access third-party services is fine AS LONG AS YOU ARE NOT CHEATING WITH THEM!That's the bottom line: cheating = bad. Playing backed up, legally bought games = fine.

Give me a break. It's completely naive to think that a significant amount of people are playing legally backed up games on their modded XBox's. Some probably are I'm sure but they are a very very small minority.

And their consoles are not "bricked". Check your facts. They can still play their games, they just can't play them online.

Wrong. Read again: cannot install to the hard drive of the consoles, have saves corrupted, etc.

You should check your facts in the other posts on this subject. Microsoft has 'bricked' the consoles and made things UNCONNECTED with the XBox Live service not work. That has been proven, it's a blunt fact.

And no, it is not 'naive' to think that considering that I have four friends who have done that, modified their XBox360 to play LEGALLY BACKED UP GAMES.

So, I am not being 'naive'.... I am just stating what I have seen in my real, day-to-day life.

You better check your definition of "brick" then. Bricking would means it's completely unusable. Users can still PLAY GAMES on their XBox which is the devices primary purpose. Not being able to install the the HDD or having saved games corrupted does not make disks fail to work.

And if you're assuming the intent of 1,000,000 banned users based off of what 4 of your friends did with their modded consoles, then yes, you're being naive. We all know the vast majority were using their modded consoles to play ISOs downloaded from bit torrent or for copying rented games.

"Game reviewers fought each other to write the most glowing coverage possible for the powerhouse Sony, MS systems. Reviewers flipped coins to see who would review the Nintendo Wii. The losers got stuck with the job." -- Andy Marken